Citation Nr: 0212195
Decision Date: 09/16/02 Archive Date: 09/26/02
DOCKET NO. 96-36 847 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased rating for post-operative
residuals of anterior cruciate ligament repair, currently
evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.C. Peltzer, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1986 to March
1990.
The current appeal comes before the Board of Veterans'
Appeals (Board) from a November 1995 rating decision issued
by the Montgomery, Alabama, Regional Office (RO) of the
Department of Veterans Affairs (VA) which continued a 10
percent disability rating for the veteran's service-connected
post-operative residuals of anterior cruciate ligament
repair. In January 1998, the Board remanded the current
issue on appeal for development. After the development was
completed, the RO issued a Supplemental Statement of the Case
(SSOC), in which the veteran's disability rating for his left
knee was increased to 20 percent. In August 2000, the Board
remanded the issue on appeal for further development. The
requested development is now complete and the issue is once
again before the Board for appellate review.
As per his request, the veteran was scheduled for a hearing
before a member of the Board in February 1997. He was
notified of the date, time, and place of the scheduled
hearing by letter in January 1997. The evidence of record
reveals the veteran failed to report for his scheduled
hearing. As such, his request for a hearing is considered as
withdrawn. See 38 C.F.R. § 20.704(d) (2001).
FINDINGS OF FACT
1. All evidence requisite for an equitable disposition of
the veteran's claim has been developed and obtained, and all
due process concerns as to the development of his claim have
been addressed.
2. The veteran's left knee disability is characterized by
complaints of pain, weakness, periodic limp, and lack of
endurance and by medical findings of mild effusion, minimal
laxity, and some atrophy to the left thigh muscle.
3. The veteran's left knee range of motion is 0 degrees of
extension and 110 degrees of flexion with pain and X-ray
findings of residual hardware in the left knee resulting in
post-operative changes to the joint.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 20
percent for post-operative residuals of anterior cruciate
ligament repair have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 4.3, 4.7,
4.71a, Diagnostic Codes 5257, 5260, 5261 (2001).
2. The criteria for a 10 percent disability rating, but no
more, for post-operative residual hardware in the left knee,
as analogous to degenerative joint disease, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.102, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5010,
5260, 5261 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
Initially, the Board notes that there was a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096, now codified at 38 U.S.C.A. §§ 5100 et. Seq.
(West Supp. 2001). This law redefined the obligations of VA
with respect to the duty to assist and included an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
Implementing regulations for VCAA have been published. 66
Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
Except for amendments not applicable with regard to this
case, the provisions of the regulations merely implement the
VCAA and do not provide any rights other than those provided
by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001).
The Board has conducted a complete and thorough review of the
veteran's claims folder. The Board finds that the RO advised
the veteran of the evidence necessary to support his
increased rating claim. The veteran was notified of the
pertinent laws and regulations for his increased rating claim
via rating decisions, the January 1998 Board remand, and the
November 1998 and June 2002 SSOCs. While the veteran has not
been specifically notified of VA's heightened duty to assist
in his claim and of any additional evidence pertinent to his
claim, the Board finds that this is not prejudicial to the
veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57
(1990). The RO, as directed by the Board, has requested and
obtained all the available treatment records for the
veteran's service-connected left knee disability.
Additionally, the Board directed the RO to schedule the
veteran for VA examinations to further substantiate his
claim. The subsequent examination reports have been obtained
and associated with his claims folder. There is more than
sufficient evidence of record to decide his claim properly
and fairly. Therefore, it is not prejudicial to the veteran
to proceed to adjudicate his claim on the current record.
See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).
II. Increased Rating Claim
The veteran is currently evaluated as 20 percent disabled due
to his service-connected post-operative residuals of anterior
cruciate ligament repair. In short, he contends that his
left knee disability is more disabling than currently rated
and a higher disability evaluation is warranted. After a
complete and thorough review of the evidence of record, the
Board agrees with his contention for the reasons discussed
below.
The severity of a service-connected disability is
ascertained, for VA rating purposes, by the application of
rating criteria set forth in VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (2001) (Schedule). To
evaluate the severity of a particular disability, it is
essential to consider its history. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2
(2001). However, where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, only the present level of disability is
of primary concern. See Francisco v. Brown, 7 Vet. App. 55
(1994). Although a rating specialist is directed to review
the recorded history of a disability to make a more accurate
evaluation under 38 C.F.R. § 4.2, the regulations do not give
past medical reports precedence over current findings. Id.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. See 38 C.F.R. § 4.7 (2001).
With respect to the musculoskeletal system, the United States
Court of Appeals for Veterans Claims (Court) has emphasized
that when assigning a disability rating, it is necessary to
consider functional loss due to flare-ups, fatigability,
incoordination, and pain on movement. See DeLuca v. Brown, 8
Vet. App. 202, 206-7 (1995); see generally VAOPGCPREC 36-97.
The rating for an orthopedic disorder should reflect
functional limitation which is due to pain, supported by
adequate pathology, and evidenced by the visible behavior of
the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. See 38 C.F.R. § 4.40 (2001). The factors of
disability reside in reductions of their normal excursion of
movements in different planes. Instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight bearing are related considerations. See
38 C.F.R. § 4.45 (2001). It is the intention of the Rating
Schedule to recognize actually painful, unstable, or maligned
joints, due to healed injury, as entitled to at least the
minimal compensable rating for the joint. See 38 C.F.R. §
4.59 (2001).
Factual Background
An August 1995 VA consultation report reflects that an
electrodiagnostic examination did not reveal any abnormal
findings regarding the left knee except for mild left
posterior tibial nerve neuropathy.
A June 1998 VA examination report reflects a diagnostic
impression of chronic left knee pain, status post surgery
times two. Regarding functional loss of the left knee, the
examination report reflects that the veteran indicated he has
difficulty in walking and going up and down stairs. The
veteran also reports that he feels that his knee is going to
give out. The medical opinion portion of the June 1998
examination report reflects: pain is situated deep inside the
left knee; restricted range of motion is due to pain and
post-operative changes in the joint; no incoordination in the
range of motion. The examination report shows that physical
examination of the left knee revealed a long Y-shaped scar
about 7 inches in length which was well-healed, pigmented,
and not tender. The report also shows that physical
examination revealed that the left knee is one inch bigger
than the right knee, palpitation of the left knee shoed that
the patella felt normal and there was no evidence of
effusion, and that the veteran was restricted to 110 degrees
flexion and 5 degrees of hyperextension. The veteran was
able to walk with a normal gait, and he could walk on his
toes, on his heels and tandem walk.
A June 1998 VA radiologic report reveals that surgical
changes were demonstrated with multiple screw in veteran's
tibia and femur, that apparent cruciate repair was noted, and
specifically states that there were no other findings.
A February 2001 VA examination report reflects a diagnosis of
anterior cruciate ligament repair, left knee, with post-
operative hardware. The report reflects that the veteran
indicated that his left knee aches on a daily basis, he
denied any swelling but did admit to weakness, stiffness,
fatigability, and lack of endurance. The report indicates
that while no limp was noted on the day of examination, the
veteran indicated that he had a slight, or periodic, limp
when his left knee is aggravated. The examination report
also indicates that there was no tenderness of the left knee
with palpitation and that he had an 8-1/2 inch scar with a 3-
inch scar laterally, and while flexion was without pain, he
did have pain with extension laterally. The addendum to the
February 2001 examination report reflects that a consultation
with a rehabilitation physician revealed mild effusion with
minimum laxity of the left knee with some atrophy to the left
thigh muscle.
An April 2001 VA consultation note reflects the veteran's
range of motion consisted of zero degrees of extension and
136 degrees of extension with pain at the endrange.
Legal Analysis
The veteran is currently rated as 20 percent disabled under
Diagnostic Codes 5299-5257. Diagnostic Code 5257 provides
the following evaluations for knee disabilities involving
recurrent subluxation or lateral instability: 10 percent for
slight; 20 percent for moderate; and 30 percent (the maximum
allowed) for severe impairment. See 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (2001). Since Diagnostic Code 5257 is
not predicated on loss of range of motion, §§ 4.40 and 4.45
with respect to pain do not apply. Johnson v. Brown, 9 Vet.
App. 7, 11 (1996).
In this respect, the General Counsel for VA, in a precedent
opinion dated July 1, 1997, (VAOPGCPREC 23-97) held that a
claimant who has arthritis and instability of the knee may be
rated separately under Diagnostic Codes 5003 and 5257. When
the knee disorder is already rated under Diagnostic Code
5257, the veteran must also have limitation of motion which
at least meets the criteria for a zero-percent rating under
Diagnostic Code 5260 (flexion limited to 60 degrees or less)
or 5261 (extension limited to 5 degrees or more) in order to
obtain a separate rating for arthritis. VAOPGCPREC 9-98.
Additionally, the General Counsel in VAOPGCPREC 9-98 held
that a separate rating for arthritis could also be based on
X-ray findings and painful motion under 38 C.F.R. § 4.59.
See also Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed Cir
1997). Where additional disability is shown, a veteran rated
under Diagnostic Code 5257 can also be compensated under 5003
and vice versa.
In this case, the evidence is clear that complaints of
weakness, pain, a periodic limp, and lack of endurance
manifest the veteran's left knee disability. Additionally,
the evidence of record revealed medical findings of mild
effusion and minimal laxity with some atrophy to the left
thigh muscle. The veteran's left knee disability clearly
does not reflect severe impairment due to recurrent
subluxation or lateral instability of his left knee.
Therefore, the Board finds that the veteran's left knee
disability does not approximate a disability picture of
severe recurrent subluxation or lateral instability such that
30 percent disability evaluation is warranted for the
veteran's left knee disability picture of mild effusion, mild
laxity, some atrophy of the left thigh, and complaints of a
periodic limp and weakness with a lack of endurance. See
38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2001).
Accordingly, the Board concludes that the preponderance of
the evidence is against a higher rating under Diagnostic Code
5257. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990);
38 U.S.C.A. § 5107(b).
The evidence of record also revealed that the veteran has
some decreased range of motion of his left knee. Diagnostic
Code 5260 states that limitation of flexion of the leg is
rated as follows: flexion limited to 60 degrees is zero
(noncompensable) percent disabling; flexion limited to 45
degrees is 10 percent disabling; flexion limited to 30
degrees is 20 percent disabling; and flexion limited to 15
degrees is 30 percent disabling. See 38 C.F.R. § 4.71a
(2001). In this case, the veteran's flexion of his left knee
was over a 100 degrees, even accounting for his limitation of
motion due to pain. As such, the veteran does not have
ratable limitation of left knee flexion. Under Diagnostic
Code 5261, limitation of extension of the leg is rated as
follows: extension limited to 5 degrees is zero
(noncompensable) percent; extension limited to 10 degrees is
rated as 10 percent; and extension limited to 15 degrees is
rated as 20 percent. See 38 C.F.R. § 4.71a (2001). The
evidence of record revealed that the veteran's extension was
limited to 0 degrees, which is not ratable. As such, the
Board finds that the preponderance of the evidence is against
a compensable disability rating based on limitation of motion
of the veteran's left knee. See Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
Under Diagnostic Code 5010, arthritis due to trauma that is
substantiated by X-ray findings is rated as degenerative
arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010
(2001). Under Diagnostic Code 5003, degenerative arthritis
established by X-ray findings is rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint involved in the veteran's claim.
However, when the limitation of motion of the specific joint
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent can be applied for each
specific joint group affected by the limitation of motion, to
be combined, not added under Diagnostic Code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. See 38 C.F.R. Part 4, § 4.71a,
Diagnostic Code 5003 (2001). In the instant case, the
evidence of record does not reflect X-ray findings of
arthritis of the left knee. The June 1998 X-ray findings
were silent to any impression of degenerative joint disease
and specifically stated that there were no other findings
other than those listed. The evidence of record did reveal
that the veteran has post-operative changes to his joint and
residual hardware in his left knee that affects his range of
motion. The Board finds that his post-operative residual
hardware in the left knee is analogous to the affect of
degenerative joint disease of the left knee. See 38 C.F.R.
§ 4.20 (2001). As such, while the veteran is not entitled to
a separate disability evaluation under either Diagnostic Code
5260 or 5261 based on limitation of motion, he is entitled to
a 10 percent disability rating for his noncompensable
limitation of motion, pain, weakness, and post-operative
residual hardware in the left knee, as analogous to
degenerative joint disease, under Diagnostic Code 5003. See
VAOPGCPREC 23-97, 38 C.F.R. §§ 4.59, 4.71a. Diagnostic Codes
5010, 5003 (2001).
The Board has also considered whether the veteran is entitled
to a higher disability rating under additional diagnostic
codes available to evaluate knee disabilities. See 38 C.F.R.
§ 4.71a, Diagnostic Codes 5256, 5258, 5259 (2001). The
evidence of record does not reflect the veteran has ankylosis
of his left knee such that application of Diagnostic Code
5256 is proper and disability ratings higher than the
veteran's current 20 percent disability rating under
Diagnostic Code 5257 are not available under either
Diagnostic Code 5258 or 5259. The Board also notes that an
evaluation of any musculoskeletal disability must include
consideration of the veteran's ability to engage in ordinary
activities, including employment, and of impairment of
function due to such factors as pain on motion, weakened
movement, excess fatigability, diminished endurance, or
incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59;
DeLuca v. Brown, 8 Vet. App. 202 (1995). However, as
indicated above, the veteran's pain, weakness, periodic limp,
and lack of endurance of his service-connected left knee
disability have already been considered by the Board when
determining that his disability picture does not warrant a
higher disability rating under Diagnostic Code 5257 and that
he is entitled to a 10 percent disability rating under
Diagnostic Code 5003.
The Board has also considered whether the veteran's surgical
scar warrant a separate compensable evaluation. Diagnostic
Code 7803 assigns a 10 percent rating for superficial scars
that are poorly nourished with repeated ulceration. A 10
percent rating can be assigned under Diagnostic Code 7804 for
superficial scars that are tender and painful on objective
demonstration. Under Diagnostic Code 7805, a scar is rated
based upon limitation of function to the part affected. See
38 C.F.R. § 4.118, Diagnostic Code 7803-7805 (2001). The
evidence of record reflects that the veteran has a post-
operative scar on his left knee that is well healed,
pigmented, and not tender. Accordingly, the Board finds that
the preponderance of the evidence of record is against a
separate compensable rating for his surgical scar. Id., See
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A.
§ 5107(b).
Finally, the Board has no reason to doubt that the veteran's
service-connected disability causes him discomfort and may
limit his efficiency in certain tasks. This alone, however,
does not present an exceptional or unusual disability picture
and is not reflective of any factor that takes the veteran
outside of the norm. See Moyer v. Derwinski, 2 Vet.
App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993) (noting that the disability rating
itself is recognition that industrial capabilities are
impaired). Accordingly, the Board finds that the veteran's
disability picture does not warrant referral for the
assignment of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b) (2001).
In brief, while the preponderance of the evidence is against
an increased rating for post-operative residuals of anterior
cruciate ligament repair, he is entitled to a 10 percent
disability rating, but no more, for post-operative residual
hardware, as analogous to degenerative joint disease, of the
left knee with some painful limitation of motion. The Board
has considered the doctrine of reasonable doubt in the
veteran's favor, but, as the preponderance of the evidence is
against a portion of his claim, the doctrine is not
applicable to that portion. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.102 (2001).
ORDER
An increased rating for post-operative residuals of anterior
cruciate ligament repair, is denied.
A 10 percent disability rating, but no more, for post-
operative residual hardware in the left knee with painful
limitation of motion is warranted as analogous to arthritis,
and is subject to the controlling regulations applicable to
the payment of monetary benefits.
C.P. RUSSELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.